MILITARY REVIEW BOARDS - DOC 11 by HC121004094615

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									                                                                        CASE NO:   AR2004104095

                                      PART II - APPLICATION DATA

          (Note: Part I deleted under the Privacy Act on Reading Room copy)

1.   Character of Discharge:              Under Other Than Honorable Conditions

2.   Date of discharge (or REFRAD):              030908

3.   Authority for separation:

     a.     Regulation:       Chapter 10, AR 635-200

     b.     Reason:     In Lieu of Trial by Court-Martial

4.   Prior review(s):          NONE



                                      PART III - SERVICE HISTORY

                            SECTION A - Period of Service Under Review

1.   Service data:                                          2.   Awards and decorations:
                                                                 NDSM
     a.     Period entered for: 5 Years                          ASR
     b.     Entry date: 010301                                   EIB
     c.     Age: 27 Years    DOB: 730515
     d.     Educational level: HS Grad
     e.     Aptitude area score:
            GT: 110                                         3.   Highest grade achieved:
     f.     Length of Service:                                   E1
              1 Year 1 Month 1 Day

                                                            4.   Performance evaluations:
                                                                 NONE

                                 PART III - SERVICE HISTORY
                   SECTION A - Period of Service Under Review - Continued

5.   Periods of unauthorized absence:

     Status             Inclusive dates
     AWOL               020221-030723;

     Mil conf           0

     Civil conf         0

     Other              0


6.   Nonjudicial punishment:              NONE

     Date           Offense(s)



7.   Court-Martial data:           NONE

     a.     SCM:
            Date      Offense(s)

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                                                                  CASE NO:   AR2004104095


     b.   SPCM:
          Date     Offense(s)


     c.   GCM:
          Date     Offense(s)


8.   Remarks:     NONE


                                SECTION B - Prior Service Data
                                             NONE

Other discharge(s):

     Service             From       To           Type Discharge




                                 PART IV - PREHEARING REVIEW

                                SECTION A-ANALYST’S ASSESSMENT

l.   Facts and Circumstances:

    a. The evidence of record shows that on 21 February 2002, the applicant
departed AWOL and was DFR’d on 23 March 2002. On 19 July 2003, he was
apprehended by the civilian authorities at Jonesboro, GA and placed in the
Clayton County Jail pending release to the military authorities. He was
subsequently transferred to the 82d Replacement Detachment, Fort Bragg, NC for
further processing. On 14 August 2003, court-martial charges were preferred
against the applicant for his desertion from 21 February 2002 – 23 July 2003. On
18 August 2003, the applicant consulted with legal counsel and voluntarily
requested, in writing, discharge under the provisions of Chapter l0, AR 635-200
in lieu of trial by court-martial. In this request, the applicant admitted guilt
to the offense, or a lesser included offense. Further, the applicant indicated
that he understood that he could receive an under other than honorable conditions
discharge and that the discharge would have a significant effect on eligibility
for veteran’s benefits. The applicant did not submit a statement in his own
behalf. The unit and intermediate commander recommended approval of an under
other than honorable conditions discharge. On 21 August 2003, the Staff Judge
Advocate reviewed the voluntary separation action and recommended approval with
an under other than honorable conditions discharge. The separation authority
approved the applicant’s request and directed he be discharged with an under
other than honorable conditions discharge.

    b. On 8 September 2003, the applicant was discharged. At the time of
discharge, the applicant had completed 1 year, 1 month, and 1 day of active
military service and accrued 517 days of lost time in the period under review.

2. Legal/Regulatory Basis for Separation Action: Army Regulation 635-200 sets
forth the basic authority for the separation of enlisted personnel. Chapter l0
of that regulation provides, in pertinent part, that a member who has committed
an offense or offenses for which the authorized punishment includes a punitive
discharge may submit a request for a discharge for the good of the service in
lieu of trial by court-martial. The requests may be submitted at any time after
charges have been preferred and must include the individual’s admission of guilt.
Army policy states that although an honorable or general discharge is authorized,
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                                                                CASE NO:   AR2004104095

a discharge under other than honorable conditions is normally considered
appropriate.


                            SECTION B-APPLICANT’S SUBMISSIONS


1.   Issue(s) of propriety and/or equity submitted by applicant or counsel.

     As stated on applicant’s DD Form 293.


2.   Exhibit(s) submitted:

     A-1:   DD Form 293, dated 040209, with four (4) enclosures.
     A-2:   Counsel Issues: NONE
     B-l:   Other Documents: NONE




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                                                                    CASE NO:   AR2004104095

                          PART IV - PREHEARING REVIEW (CONTINUED)

                     SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor             ( ) Legal Advisor



          a.    Medical prehearing comments (if applicable):


          b.    Legal prehearing comments (if applicable):




                                PART V - SUMMARY OF HEARING

                               SECTION A-Attendees and exhibits

1.   Review/hearing information:


     a. Type requested:
        (   ) Records review                   ( X ) Hearing

     b. Type Held:
        (   )Records review                    ( X ) Hearing
                                               (   ) Tender Offer

     c. Review/hearing location and date:           Washington, DC on 1 November 2004.

     d. Appearance by:
        Applicant                       ( X ) Yes     (   ) No
        Counsel                         (   ) Yes     ( X ) No

     e.        Applicant testified:     ( X ) Yes     (   ) No

     f.        Counsel presentation:    (   ) Yes     ( X ) No

     g.        Witness(es) testified:   ( X ) Yes     (   ) No

2.   Exhibit(s) submitted at hearing:        twenty-five (25) supporting documents.




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                                                                  CASE NO:   AR2004104095

                                 PART VI - ISSUES AND FINDINGS

1.   a.   Applicant's issue(s) of propriety and/or equity:

          ( X )     Same as those listed on DD Form 293 and Part IV, Section A of
                    this case report and directive.
          (   )     Revised issue(s) furnished in writing by applicant as follows:
          ( X )     Additional issue(s) identified during review/hearing as
                    follows:

          Board Issue:     (2)   The discharge is inequitable.

     b.   Request:     ( X ) Recharacterization        (   ) Change of Reason


2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on
issues of propriety and/or equity:

     a.   Propriety:     The applicant has not submitted an issue of propriety and
                         the ADRB has not otherwise relied upon an issue of
                         propriety to change the discharge.

     b.   Equity:        The parenthetical number(s) below correspond(s) to the
                         issue number(s) on the DD Form 293, or in Part VI,
                         Paragraph 1, above.

        (2) The issue is accepted. The Board carefully examined the
applicant’s record of service during the period of enlistment under review and
heard his testimony. There was a full consideration of all faithful and
honorable service as well as the infraction of discipline, the extent thereof,
and the seriousness of the offense. The Board does not condone the
applicant’s misconduct; however, determined that the discharge is inequitable.
The Board found that the applicant’s misconduct was mitigated by the
circumstances surrounding his AWOL and his medical condition that impaired his
ability to serve. Accordingly, the Board voted to change the narrative reason
for separation to Secretarial Authority and to upgrade the characterization of
service to fully honorable. This action entails a change to the RE code to
“1.”

          (1)     See Paragraph 3, below.

3.   Response(s) to item(s) not addressed as decisional issue(s):

    Inasmuch as the Board voted to grant the full relief requested, response
to the remaining issue is neither required nor rendered.
                            PART VII - BOARD ACTION
                    SECTION A - Conclusions/Decisions/Vote

1.   Board conclusion(s):

     The discharge was:

     ( X )      Proper.
     (   )      Improper as to characterization.      Change characterization to
                                                        .
     (    )     Improper as to reason.      Change reason to
                under                          .

     (   )   Equitable.
     ( X )   Inequitable as to characterization. Change characterization to
             Honorable.
    ( X )    Inequitable as to reason. Change reason to Secretarial Authority
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                                                                  CASE NO:   AR2004104095

                under Chapter 5, AR 635-200.
     (     )    Both proper and equitable, but characterization/reason for
                separation cited was an administrative/clerical error and should
                be changed to                      under                         .

2.   Voting record:          Change     No Change
               Reason           5           0
     Characterization           5           0

    The names and votes of the members of the Board are recorded in Part IX
of this document and can be obtained by writing to the address below. The
request must contain the CASE NO. located in the upper right corner of this
document.

                       Department of the Army Review Boards Agency
                       ATTN: Promulgation Team
                       1901 South Bell Street, 2nd Floor
                       Arlington, VA 22202-4508



3.   Minority views:      NONE
                                 PART VII - BOARD ACTION
                       SECTION B - Verification and Authentication

Case report reviewed and verified


MR. RON WILLIAMS
Case Reviewing Official

                           PART VIII - DIRECTIVE/CERTIFICATION
                                  SECTION A - DIRECTIVE

TO: ARBA Support Division-St Louis             Date:   5 November 2004

     The Army Discharge Review Board, established under the provisions of
Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as
Title 10, United States Code, Section 1553, in the case of the applicant named
in Part I directs that the ARBA Support Division-St Louis issue a new DD Form
2l4 to the applicant which reflects the following directed change(s):

               ( X )   Change the characterization of discharge to Honorable.
               ( X )   Change reason and authority for discharge to Secretarial
                       Authority, under Chapter 5, AR 635-200.
               ( X )   Other (see remarks below).

Remarks:       This action entails a change to the RE code to “1.”


                                 SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

OSA FORM 172 (REVISED) 22 May 98 Page          6
                                                                CASE NO:   AR2004104095




MARY E. SHAW
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge                        C - Other
B - Material submitted by applicant

INDEX RECORD:

AR Number: 2004104095                         INDEX NUMBERS:   A9456
Date of Review: 041101                                         A1200
Character of Service: UD                                       A9322
Date of Discharge: 030908                                      A0100
Authority: AR 635-200 C10
Reason: A7100
Results of Board Action/
Vote/Affirmation: HD 5-0 A




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                                                               CASE NO:    AR2004104095



                                PART IX - VOTING RECORD


    Name                                         Reason        Characterization

                                                 CHANGE   NC   HON   UHC    NC   UNCHAR



    1. LTC PROCTOR, ESMERALBA G.           Mbr      X           X



    2. COL CHAMPIN, ALEJANDRO L.           Mbr      X           X



    3. COL FLETCHER, ANN G.                Mbr      X           X



    4. COL ANDRASCHKO, STEVEN L.           Mbr      X           X



    5. COL HOUSE, ROBERT L.                PO       X           X




OSA FORM 172 (REVISED) 22 May 98 Page       8

								
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